Failure to Provide a Sample of Blood

First, there must be a definite request to provide a sample of blood. In Kuldip Singh Gill v DPP (47), it was held that a driver could not be convicted of failing to supply a specimen of blood or urine if he or she was not requested to do so. Where the sample of blood is taken from is solely the choice of the forensic physician (or, in the United States, the emergency room physician). In Solesbury v Pugh (48), the defendant was found guilty of failing to supply a specimen as he would only allow a sample to be taken from his big toe, which the doctor was not prepared to do.

It is reasonable for the person to request that his or her own doctor take the sample of blood, providing this does not delay the sample being taken (49). In the United Kingdom, if the patient's own doctor and forensic physician are both present, the person can choose which doctor takes the sample. Similar rules apply in the United States, where statutes generally spell out that financial responsibility for such services rests with the driver and not the state. In the United Kingdom, if a blood sample is provided but the doctor spills the sample, then the law has been complied with on the basis that removal of the syringe from the vein by the doctor completes the provision of the specimen by the defendant (50). In the United Kingdom, a minimum of 2 mL of blood is required (the laboratory requires a minimum of 1 mL for analysis) for an adequate sample (51). If less than this is obtained, the sample should be discarded and another one attempted or the police officer advised that there is a medical reason why a sample of blood should not be provided and the urine option can then be selected. In the United States, minimum quantities are generally not written into statute. As indicated, alcohol swabs should not be used. In the early 1980s, one police force purchased and used swabs containing alcohol with the result that numerous convictions were later overturned (52).

Probably the most common defense for failure to provide a sample of blood is that of needle phobia. If this is alleged, a full medical history should be obtained and enquiry made of whether the person has had blood tests before, whether ears or other parts of the body have been pierced, or whether there have been foreign travel immunizations or any other medical or dental procedure undertaken in which an injection may have been administered. Specific inquiry about the phobia should be made. British appellate judges (53) have stated that "no fear short of phobia recognized by medical science to be as strong and as inhibiting as, for instance, claustrophobia can be allowed to excuse failure to provide a specimen for a laboratory test, and in most if not all cases where the fear of providing it is claimed to be invincible, the claim will have to be supported by medical evidence." Stark and Brener (54) stress the importance of having a standardized approach for assessing needle phobia using diagnostic guidelines for a definite diagnosis of a specific phobia and wisely conclude that the best way to ensure a successful prosecution is to obtain a sample, any sample, for analysis. Rix also gives some practical advice to police surgeons: be able to distinguish between repugnance and phobia, be able to distinguish between unwillingness and inability, document the history and examination with emphasis on the presence or absence of signs of anxiety, and ensure that the decision is based on firm medical evidence. Finally, record all this information, specifically note in the police record whether a medical condition has been identified, and then verbally communicate this opinion to the police officers (55).

Another common defense is that of consuming alcohol after the offensethe hip flask defense (56). It is used almost universally and is based on the fact that although it is unlawful to have an excessive BAC at the time of driving, it is not unlawful to have an elevated blood alcohol at the time of being tested. In the United Kingdom, Section 15(3) of the RTA allows for a driver to prove that he or she had imbibed alcohol after ceasing to drive and that the amount of such consumption was the sole reason for being over the legal limit or unfit to drive, at the time he or she gave a sample for analysis. It will be necessary for a scientist to prove that it was only the postdriving consumption that caused the analysis to reveal an alcohol level above the prescribed limit. The quantity of alcohol in the after-drink, the time of intake, and the age, sex, height, and body weight of the driver can all be used to calculate the theoretical expected BAC (57). Back calculations can only be approximate because they are based on average values, and although they are reasonable estimates for most people, they may occasionally fail to reflect accurately the situation of a particular individual, regardless of whether the calculation is for preincident or postincident drinking.

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